The Education Secretary, David Blunkett, was judged to have acted illegally on two key points related to the introduction of performance-related pay for teachers in England and Wales.

In the High Court, in a judicial review sought by the National Union of Teachers, Mr Justice Jackson found for the union on both counts.

The first involved the standards by which teachers who applied to "cross the threshold" onto a new, higher pay scale were to be assessed.

The second related to a new duty on all teachers to assist head teachers in assessing whether colleagues merited crossing the threshold.

Standards

When David Blunkett set out the standards to be applied, he did so by simply announcing them.

He said he was acting under inherent or general powers which he had as secretary of state.

But the judge, Mr Justice Jackson, said Mr Blunkett had improperly bypassed Parliament and the Welsh Assembly, as well as the School Teachers Review Body which advises him on such things, and "evaded scrutiny".

"The secretary of state cannot insert a controversial term in all teachers' contracts of employment simply by making an announcement in the Department for Education and Employment News, or by printing it in an information note circulated to schools," he said.

The NUT was "well founded" in its assertion that the secretary of state had no powers to "promulgate" the threshold standards and had adopted unfair consultation procedures, he said.

'Snooping'

The other key change involved The Education (School Teachers' Pay and Conditions) (No. 2) Order 2000.

To teachers' other duties this added "assisting the head teacher in carrying out threshold assessments of other teachers".

The government had tried to argue that this meant simply that heads of department would have to assist heads.

The union said that, as written, it applied to all teachers - amounting to a requirement to "snoop" or "inform" on their colleagues.

The judge said it "positively requires any teacher - whether willing or unwilling - to assist when required in the assessment of colleagues on a vital matter affecting their salaries".

The order had been drawn up on a "fast track" procedure with just four days allowed by the Department for Education for consultation with the unions and other interested parties. That was "a wholly insufficient period", said the judge.

He quashed the order.

The Welsh question

The judicial review was awaited with particular interest in Wales as a first court test of the Assembly's devolved powers.

This was an issue in the way Mr Blunkett announced the threshold standards.

The Assembly has not opposed performance pay in principle but has voted against having any link between teachers' pay and pupils' academic progress.

But Labour ministers in Wales insisted the Assembly did not have devolved power to legislate on that. It followed the line set in Whitehall.

The judge said Mr Blunkett had undoubtedly consulted widely about the standards.

"The fact remains, however, that the secretary of state has not used any of the statutory procedures which were available to him," he said.

The judge observed that the standards could have been incorporated in regulations related to the Education (No 2) Act 1986.

Those regulations involve the performance management system, with annual appraisals, which applies to all teachers from next September whether or not they are seeking to cross the threshold.

But had Mr Blunkett done that, they would have fallen within the Assembly's devolved powers.

The judge said of the decision not to use that route: "This may be because the Welsh Assembly would not be prepared to make similar regulations governing teachers in Wales."

Nor had he used the alternative route, involving the 1991 School Teachers Pay and Conditions Act.

Had he done that, they would not have fallen under the Welsh Assembly's devolved powers.

But he would have been obliged to refer them to the School Teachers Review Body. That body would have had to take evidence from interested parties, then report back to Mr Blunkett - all of which would have taken time.

The judge said there was "obvious good sense" in the fetters the Act placed upon the making of pay and conditions orders and it was hardly surprising that Parliament wanted any significant contract changes to be scrutinised by an independent body.

"The procedure adopted by the secretary of state in the present case, albeit with good intentions, has evaded that scrutiny," said the judge.